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What happens to my house in a divorce?

One of the hardest parts of divorce is dividing property. Agreeing on something as sentimental and valuable as the family home is often emotional and difficult. Many people think the only option is selling the home, but that isn’t the case. Here’s what happens to your house in a divorce in Utah. 


Marital property vs. separate property

Each state addresses the splitting property as a result of a divorce differently. We’ll address specific laws and recommendations for Utah residents. If you are moving to Utah from another state where you’ll be selling or splitting property as the result of a divorce, you’ll want to contact someone locally who can help you understand the laws of that state. 


Marital property

In the state of Utah, marital property is considered any property you acquired during your marriage. It also includes property used to benefit the marriage even if it started out as separate property. 


Separate property

Property considered separate typically belongs to one spouse before marriage and kept separate throughout the marriage. In some cases, this may also include a property gift given to only one spouse during the marriage such as a gift or inheritance.


Equitable Distribution in Utah

Utah is an equitable distribution state which means the law requires property be fairly divided, but doesn’t necessarily mean equally divided. Even if spouses agree, the judge will look to see if the agreement is fair and reasonable. The courts can consider factors such as length of the marriage, income, financial contributions, earning potential, and even each spouse’s level of education. 


What are my options?

If you are divorcing and don’t have a prenup or post nuptial agreement in place, you have a few options available for what to do with the house. 


Dividing assets

If you and your spouse own multiple homes as well as other large assets, the quickest and sometimes easiest way to deal with properties is to divide them up. You’ll still need to negotiate the value of the property and other assets, but if you are able to come to an agreement, this may be the best option. 


Buy out the other party

The spouse who wants to keep the property may offer to buy the property from the other spouse. In this case, the person buying out the property often pays the other spouse half of the current market value to gain sole ownership. The buyout amount may be more or less than half depending on factors listed above about equitable distribution in Utah. While it may be possible to roll a buyout of the home into a refinance, often the spouse buying out the property needs access to a significant amount of cash that isn’t part of the divorce proceedings.

If you are considering a buyout, be sure to get an appraisal done. If there are any judgements or liens on the property, that will need to be taken into consideration as well. 


Co-own the home

When one spouse can’t afford to buy out the home, another option is to co-own the home. It may be the most practical option and keeps the children in the home longer. The downside is that everything regarding the home will need to be agreed upon. Late payments will still affect both the owner’s credit scores and capital gains taxes may come into play if the home is sold in the future. 


Sell the home

This is the most common solution for divorcing couples who own a home together. Selling it offers both a clean break and can help cover other divorce costs such as legal fees and finding a new living situation. 


Let the courts decide

In some situations when couples just can’t agree on an amicable solution, the District or Family Court will divide the marital estate with a Judgement of Divorce. The court will take the couple’s situation into consideration and provide a final decision for the properties or assets considered marital property. 


How to negotiate the sale of a marital home

If you decide to go down the path of selling your home as part of your divorce, you need to be prepared to negotiate a variety of items. The process requires good communication as well as cooperation with your spouse and your attorneys. 

Some items you’ll need to agree on to successfully sell your home include:

  • Any necessary home improvements
  • Setting a sale price
  • Hiring a Realtor
  • Accepting an offer
  • Splitting proceeds of the sale
  • Paying off the mortgage or making payments until it sells
  • Paying any agent fees and closing costs


Selling a home as part of a divorce can be tricky. The ideal way to go about it is to sell the home before filing for divorce. There are fewer legal issues involved before you file and if you are amicable the proceeds of the home can help you both hire attorneys, pay off debt, and find a new living situation. If you wait to sell the home until after you filed, you may find the divorce proceedings take much longer and there may be restrictions for selling it without a court order. 

Waiting until after your divorce is final is also difficult because you’ll both be responsible for the mortgage until it sells which often leads to a higher risk of delinquency. Dividing the proceeds requires you both to calculate the equity gained after the divorce finalized and dividing it equally is problematic for many couples. 

If you find yourself in any of these situations and have some questions about the best way to move forward, please feel free to give us a call at {number}. We are always happy to help!


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